Sometime early next year (we don’t yet know when), the Supreme Court will hear oral arguments in U.S. v. Hemani, a case dealing with the federal prohibition on gun ownership for “unlawful users” of drugs. The Fifth Circuit Court of Appeals ruled that the law is unconstitutional as it applies to Ali Danial Hemani, who was found in possession of both marijuana and cocaine. The DOJ appealed that decision and is arguing that the law should stand unquestioned, arguing that the statute only temporarily deprives people of their Second Amendment rights (they can regain them if they stop using drugs) and that the DOJ’s proposed rule allowing prohibited persons to apply to the Attorney General to have their rights restored is a better option than invalidating a federal statute.
Professors Ian Ayres and Fredrick Vars, from Yale and Alabama respectively, have taken an odd approach to the Hemani case. On the one hand, the pair claim that “the millions of Americans who are recreational marijuana users should not be prohibited from exercising their Second Amendment rights,” while also arguing that “[t]he Supreme Court should uphold the bar on gun possession by habitual and addicted drug users.”
If the Supreme Court simply upholds Section 922(g)(3), then those millions of recreational (and medicinal) marijuana users are still going to be prohibited from exercising their Second Amendment rights. SCOTUS could decide that the law is unconstitutional as it applies to Hemani and others, at least without an individualized finding by a court that their drug use makes them too dangerous to possess a gun. That’s essentially the stance adopted by the Eighth Circuit Court of Appeals, and as we’ve previously noted here, the Court declined cert to a pair of Eighth Circuit cases earlier this term and allowed the appellate court’s rationale to stand.
It’s highly unlikely, though, that the Court would adopt some standard that says Section 922(g)(3) categorically doesn’t apply to marijuana users but does apply to those who use harder drugs, which seems to be what the professors are arguing. And the Court is also unlike to create new prohibitions, which the pair would also like to see in place.
“Habitual users of drugs, which are unlawful, pose a greater danger than habitual users of alcohol,” the government’s brief asserts. This claim is not well supported with regard to THC, the chemic in marijuana that causes the high. Marijuana, unlike other substances alcohol and other substances, does not significantly increase the probability of interpersonal violence. Moreover, particularly in states that have loosened cannabis restrictions, many millions of otherwise law-abiding citizens use marijuana. Even if we trusted that the law would be enforced evenhandedly (not just against dual-citizen Pakistanis), there simply isn’t enough room in jails and prisons to fit every marijuana user who owns a firearm.
On the other hand, “controlled substance” does not include alcohol, even though alcohol use is strongly correlated with violence and with suicide. It is even less realistic to prohibit gun possession by the many Americans who use alcohol, but multiple DUIs could serve as a good proxy for individuals who cannot control their drinking safely.
Another sensible measure would be to prohibit gun possession by (or transfer to) someone who is presently intoxicated, whether as a result of drug or alcohol use. It’s hard to believe, but it’s currently legal in many states for people who are too drunk to drive to go into a gun shop and purchase a gun. Congress should prohibit purchasing while intoxicated and impose dram-shop-like liability on retailers for any subsequent harmful use of firearms by clearly drunk buyers.
To be fair, Ayers and Vars do note that Congress should be the branch of government that prohibits purchasing firearms while intoxicated. Currently, 19 states and the District of Columbia ban gun sales to people who either have a history of alcohol misuse or who are actively intoxicated, though how an FFL is supposed to know about someone’s history of alcohol misuse is a mystery.
Is a federal (or state law) really necessary? Gun store owners can deny a purchase to anyone they want, and I have a hard time believing that many FFLs would willingly open themselves up to the threat of a lawsuit by selling a gun to someone they think is three sheets to the wind.
Ayers and Vars also argue that those “convicted of multiple DUIs should lose their guns rights for some number of years,” though they don’t say how long that prohibition should last. Of course, anyone convicted of felony DUI is going to lose their Second Amendment rights anyway, but I can see how their broader argument might make sense on the surface. If someone’s shown themselves to be irresponsible enough to get behind the wheel of a car while drunk, why should they be trusted to be responsible with a gun?
The problem, though, is that we still allow these individuals to purchase and own vehicles, even if their license has been suspended or revoked. In Virginia, for instance, a third DUI offense can lead to vehicle forfeiture, but only the vehicle that was used in the drunk driving offense, and there’s nothing prohibiting that individual from purchasing another. If someone convicted of multiple DUIs can still own a car or a truck, it makes no sense to me that they would be prohibited from owning a gun.
The Supreme Court’s Second Amendment decisions to date have been pretty narrow, and I suspect that will be the case with Hemani as well. My prediction is that the Court will come close to adopting the Eighth Circuit’s opinion that a prohibition on keeping and bearing arms can only come after a determination of someone’s dangerousness, which would open the door for at least some medical and recreational marijuana users to continue to possess firearms, but I don’t think the justices are going to strike down 922(g)(3) in its entirety. There’s also a chance that the Court could simply uphold Section 922(g)(3) as its currently written, but that would arguably conflict with the Rahimi decision, where the Court ruled someone can be temporarily deprived of their Second Amendment rights if a judge has determined they pose a danger to themselves or others.
Under no circumstances, though, do I see SCOTUS expanding Section 922(g)(3) to encompass alcohol abuse, and I don’t think there are enough votes in Congress to enact the type of prohibitions Ayers and Vars would like to see. It may be common sense that people shouldn’t buy a gun while they’re actively inebriated, but that doesn’t necessarily mean we need a federal statute to that effect either.
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